Abbott, TCEQ and the governor have been on the warpath against the EPA for some time. Abbott, has filed lawsuits against the EPA defending Texas’ flexible permit program that allows certain industries an exemption from having to disclose pollution for each individual smokestack at a facility and allowing them to aggregate all emissions from the plant together. Click here to read an earlier blog post on Texas’ flex permit program. The TCEQ didn’t even send a representative to an EPA public meeting in Dallas about the DFW’s efforts to come into compliance with the federal clean air standards. Abbot is also challenging the EPA’s efforts to regulated greenhouse gases. In late January, Abbott sent a letter to President Obama and congressional leaders asking them to push legislation limiting the EPA’s reach.

Abbot will make an opening statement and then take questions from the committee.

In a completely un-shocking and saddening display of administrative arrogance, the Texas Commission on Environmental Quality (TCEQ) commissioners Bryan Shaw and Buddy Garcia granted an air permit for the proposed Las Brisas coal plant. Commissioner Carlos Rubinstein abstained from voting due to being briefed on the permit when he previously served as deputy executive director.

The two commissioners who voted to approve the permit did so despite the fact that this permit has been recommended against twice by the State Office of Administrative Hearings (SOAH) judges who presided over the contested case hearing and deliberated for months on the specifics.

Again today at the TCEQ hearing both judges recommended against issuance of the permit, and the TCEQ’s own Office of Public Interest Council also recommended denial of the permit.

In addition there were lawyers speaking for the thousands of members of the Clean Economy Coalition (based in Corpus Christi where the Las Brisas plant is proposed), Sierra Club, and EDF, all of whom are against issuance of this permit. But after only 45 minutes of testimony during the public hearing, TCEQ Chairman Bryan Shaw recommended granting the permit application stating that he didn’t believe the merits of the facts before the commission would require or warrant (the state agency to remand it), based on his understanding of the rules in place.

Earlier this week, the EPA had asked the Texas commission to not issue the permit until the two agencies could work together to resolve various issues, stating that they were concerned about a lack of consultation with them and that the plant could violate federal clean air standards. They further wrote that they had “strong concerns about the public health and environmental impacts” the plant would pose.

Commissioner Shaw said the EPA’s letter could not be considered because it was not part of the official record of Wednesday’s proceeding so it had no impact on their decision.

This permit is illegal, and the TCEQ commissioners have broken both federal (Clean Air Act) law as well as Texas law in granting it. The EPA also now requires greenhouse gas permitting for any new facilities permitted after January 1, 2011 – but the TCEQ commissioners wouldn’t consider any comments regarding this important factor. Still, Las Brisas will need to acquire such a permit from the EPA before they can begin construction, much less operation, of their proposed coal plant.

The facts in this case are clear. The permit does not meet the minimum standards necessary to protect human health and the environment, and the people who have actually investigated the particulars of this case have consistently and continually recommended against this permit.

Nevertheless, those who have the power to make the decision (the TCEQ commissioners) continue, as they have in the other coal plant cases, to ignore the concerns of the public, the medical communities, environmental groups, and even their own staff. Instead they make these permitting decisions based on politics and act as a rubber stamp for pollution.

TCEQ is up for “sunset” review at the Texas legislature this year. When asked at the Texas Sunset Advisory Commission hearing if the TCEQ had the authority to deny a permit, they answered yes, but given the history of new coal plant permits approved over the past decade, one would be hard pressed to determine what, if any, criteria would cause the state agency to exercise their authority.

In the months leading up to this decision, citizens from around the state have been letting the Sunset Commission know that they believed the TCEQ was broken, and they believe the agency that is supposed to protect our health and environment does the opposite.

The CEC and other people closely affected by this plant are outraged at this decision, but the whole state of Texas needs to be.

Although Las Brisas is the worst of the most recent coal plant permits to be issued by TCEQ there have been other, deficient coal plant permits granted within the last few months throughout Texas near Bay City, Sweetwater, and Victoria.

Please call your Texas legislator and ask them to ensure that TCEQ Commissioners will have to follow the decisions of the administrative judges who rule on these cases, instead of simply ignoring their concerns and the concerns of the public.

The much anticipated hearing between the Environmental Protection Agency and Texas regarding the regulation of greenhouse gas emissions will occur this morning in Dallas, Texas. The hearing is set to begin at 10:00 AM and is expected to continue through 7:00 PM this evening. The hearing will be held at the Crowne Plaza Hotel in the Market Center and will assemble both the public and concerned citizens of Texas for dissent and opinion on the issue. Many members of the community will be in attendance, as well as other battlemen fighting for justice, including the Sierra Club and of course, Public Citizen, represented by our very own pirate coal activist Ryan Rittenhouse! We will be making our voice heard this morning in Dallas in hopes of changing the current regulations concerning emission standards. Businessweek has quoted Neil Carman of Sierra Club on the issue, who has assessed that the new rules of the EPA will not in fact be costly to implement whatsoever.

The latest controversy involves the decision made late last year that the EPA would in fact be taking over the permitting process regarding emission regulation in Texas. In response, Texas is now currently suing the EPA to try and halt their implementation plan which would essentially call for more rigid regulation standards in either new or existing power plant and/or oil facilities.

EPA vs. Texas: Emissions Shootout

Texas claims that the EPA is overstepping the state’s authority with respect to emission setting standards. The EPA’s justification for taking over the permitting process is related to Texas rejecting to comply with the EPA’s new greenhouse gas rules issued earlier this year. The EPA claims that Texas has left them no other choice but to take over, not only because of the hot-headed letter we sent to EPA refusing to comply with the Clean Air Act, but also since Texas is also the leading nation in greenhouse gas emissions as well as industrial pollution. By holding this hearing, the EPA is allowing both environmental advocacy groups as well as the public to voice their opinion before the final decision is rendered concerning emission standards.

Will the outcome of this battle prove to be victorious? Tune in next time to find out!

According to the Associated Press, the U.S. Environmental Protection Agency has asked a Washington court to allow it to issue greenhouse gas permits in Texas, even though the state has asked the judges to stop the federal move.

The EPA filed its motion on Thursday in the U.S. Court of Appeals in Washington. The motion came after the court asked the agency to wait until Friday before implementing its plan to directly issue the permits in Texas, the nation’s leader in greenhouse gas emissions and industrial pollution.

In its court plea, Texas accused the EPA of overstepping its authority, but the EPA argues that Texas has left it no choice. Texas is the only state that has refused to comply with the EPA’s new greenhouse gas rules that went into effect on Jan. 2.

A Texas Sunset Advisory Commission hearing, which was part of the first legislative review of the Texas Commission on Environmental Quality in 12 years, drew hundreds of regular citizens from around the state, with most of them saying the agency had failed to protect them from pollution. Dozens of people, including doctors, school teachers, church-going grandmothers and a rabbi, who were able to stick it out until well after 5pm before the Sunset Commissioners got around to taking their testimony, asked Texas lawmakers to make the state’s environmental agency tougher on polluters.

The Legislature’s Sunset Advisory Commission evaluates and considers potential reforms at state agencies every 12 years, and its findings have the potential to lead to significant changes in the TCEQ’s operations during the legislative session that begins next month, if the Sunset Commissioners so recommends.

The Sunset commission’s staff, in response to complaints that TCEQ is too lenient on polluters, has recommended that the Legislature increase the statutory cap on penalties from $10,000 to $25,000, as well as change the way the agency calculates fines. In fact, TCEQ agreed with the two dozen recommendations made by the Sunset commission’s staff, but TCEQ critics are asking for even more changes. They accused the agency of being too cozy with industry and ignoring public concerns. They expressed frustration over the recent approval of air pollution permits for coal-fired power plants near Abilene and Bay City, about 60 miles southwest of Houston, even though State Office of Administrative Hearings administrative law judges recommended denying both permits.

Texas Sunset Commissioner, State Sen. Juan “Chuy” Hinojosa (D-McAllen) asked TCEQ Chairman Bryan Shaw whether the agency has the authority to deny a permit application. Shaw said yes, and it had done so 14 percent of the time. However, no one pursued how many had been denied in the past four years or if any of them had been for large industrial projects since TCEQ’s permitting process ranges from permits for auto repair and lube service shops to dry cleaning facilities to waste water treatment plants to billion dollar coal-fired electric plants.

Wesley Stafford, an asthma and allergy specialist in Corpus Christi who opposes a proposed petroleum coke-fired plant in Corpus Christi because of the potential public health effects, asked lawmakers to require that one of the TCEQ commissioners be a physician to “bring more balance to the commission than we’ve seen in recent years.” In the face of these criticisms, TCEQ Commissioner Buddy Garcia defended the agency’s performance, saying that it protects public health by “following the law”.

The Sunset staff’s 124-page analysis does not address the heated dispute between the federal government and Texas over the way the state regulates industrial air pollution that resulted in the U.S. Environmental Protection Agency recently rejecting some of the state’s permitting rules, saying they fall short of federal Clean Air Act requirements. Texas has challenged the decision in court, even though the problems were first brought to the TCEQ’s attention shortly after the Texas rules were implemented, as far back as the Bush administration. It is unlikely that the Sunset Commission will address these issues, and they will probably leave it to the courts to sort out that conflict. But the Sunset Commissioners do have the opportunity to address the issues put to them by the citizen’s of Texas who pleaded with them yesterday for change. Their recommendations will be released on January 11th, the day the 82nd legislature convenes.

In the face of the changes in the political dynamic in Washington, the Obama administration is retreating on long-delayed environmental regulations. The new rules were set to take effect over the next several weeks, but this move will leave in place policies set by President George W. Bush while it pushes back deadlines to July 2011 to further analyze scientific and health studies of the smog rules and until April 2012 on the boiler regulation.

Environmental advocates fear a similar delay on the approaching start of one of the most far-reaching regulatory programs in American environmental history, the effort to curb emissions of carbon dioxide and other greenhouse gases.

The delayed smog rule would lower the allowable concentration of airborne ozone to 60 to 70 parts per billion from the current level of 75 parts per billion, putting several hundred cities in violation of air pollution standards. The agency says that the new rule would save thousands of lives per year, but saving lives now seems to have taken a back seat to saving the costs to businesses and municipalities of having to meet those standards.

US Environmental Protection Agency (EPA) has set a December 1, 2011 deadline for 13 states to develop plans to regulate greenhouse gas emissions, as the agency prepares to implement its major new rule January 2.

A dozen of the states plan to submit emissions plans that do not account for GHG emissions, thereby triggering federal control of their GHG permitting process, but the process between EPA and those states is an expected amicable agreement. Arizona, Arkansas, Florida, Idaho, Kansas, Oregon, and Wyoming will submit plans by December 22 and Kentucky; Clark County, Nevada; Connecticut, parts of California and Nebraska are expected to submit their plans after the beginning of the year.

This will enable 49 of the states to issue permits on or around January 2, either themselves or through the EPA. But Texas, the lone holdout, did not say when it would submit a GHG plan, continuing a standoff with the EPA and the administration on its environmental policies. The state has also filed a series of legal challenges in federal court.

Under the rules of the Clean Air Act, Texas has until December 1, 2011 to submit a revised “state implementation plan” that accounts for regulating GHG emissions. Although the EPA, in its Friday announcement, said it would not wait until then to take control of the state’s GHG permitting and is planning additional actions to ensure that GHG sources in Texas, as in every other state in the country, have available a permitting authority to process their permit applications as of January 2, 2011.

The Environmental Protection Agency issued a 100-page proposal, the “PSD and Title V Permitting Guidance for Greenhouse Gases” for public review and feedback in mid-November, providing two weeks for responses by a Dec. 1 deadline. Finalized terms will be put in place by Jan. 2, 2011, in accordance with an implementing “Tailoring Rule” to guide state-level permitting authorities and extend the EPA’s influence over the greenhouse gas emissions of industrial sectors. Click here to see a copy of the rule and EPA factsheets on the issue.

Operating through permitting authority asserted under the Clean Air Act, the agency will now require CO2 emissions to be considered in the design of every major project in which fossil fuel is combusted or CO2 emissions are released. Included are electrical power generation, refineries, iron and steel mills, pulp and paper mills and cement production.

Effective July 1, 2011, any new source of greenhouse gas emissions that exceeds 100,000 tons of CO2 per year or plant modification adding 75,000 tons annually, will be subject to permit approval based upon currently undefined case-by-case “best available control technology” assessments.

Some background informationIn an April 2, 2007, Supreme Court case (Massachusetts v. EPA), the court ruled in a split 5-4 decision that greenhouse gasses fit within the definition of “air pollutants” and subsequently the EPA issued a finding of public health or welfare endangerment.

On Dec. 7, 2009, EPA Administrator Lisa Jackson signed two distinct findings. One was an “Endangerment Finding,” which found that current and projected atmospheric concentrations of six greenhouse gases (including CO2) “threaten the public health and welfare of current and future generations.” A second “Cause or Contribute Finding” found that “combined emissions of these well-mixed [greenhouse gases] from new motor vehicles and new motor vehicle engines contribute to greenhouse gas pollution which threatens public health and welfare.”

On April 1 the EPA finalized a light-duty vehicle rule controlling greenhouse gas emissions, confirming that Jan. 2, 2011, is the earliest date that a 2012 model year vehicle meeting established limits can be sold in the U.S. Then on Oct. 25 the EPA and the National Highway Traffic Safety Administration issued a proposed rule to establish the first-ever greenhouse emission and economy standards for heavy-duty trucks that will phase in during model years 2014 to 2018 arguing that improved fuel efficiency growing out of this ruling will save the trucking industry money.

The court overturned a district court ruling saying the developers of the Sandy Creek Power Plant should have been required to show that they would employ the “maximum achievable control technology” (MACT) to limit the emissions of mercury and other pollutants once the plant was up and running.

In 2006 the Texas Commission on Environmental Quality (TCEQ) issued the permit for Sandy Creek, relying on an Environmental Protection Agency (EPA) ruling from the year before exempting coal- and oil-fired generating plants from the MACT standard.

In 2008, an appeals court struck down the EPA’s earlier ruling and, even though construction had already started on Sandy Creek, the Sierra Club and Public Citizen filed a lawsuit arguing that work could not go forward because the plant had not shown it could meet MACT standard.

The district court sided with Sandy Creek because it had commenced with construction, and that, at the time, the plant was in compliance with the rules in place.

The circuit court said in its ruling that because the EPA was wrong to exempt coal plants from the MACT standard, Sandy Creek cannot rely on that exemption to continue construction without a proper permit, and sent the case back to the district court.

With states scrambling to align their own rules with U.S. EPA‘s new regulations, which are set to take effect on Jan. 2, 2011 and require regulators to start issuing Clean Air Act permits next year for large stationary sources of greenhouse gas emissions, Texas is now the lone holdout, according to an analysis by the National Association of Clean Air Agencies (NACAA). Click here to see a copy of the analysis. (more…)

It has been about half a year since the battles started between the EPA and TCEQ over the Texas’s flexible air-permitting program. Unfortunately, the Governor has taken advantage of this issue to use to attack the Federal Government in his bid for the Governor post. Many have us have forgotten that the EPA started questioning the state’s permitting program during the Bush administration, long before Obama took office, but since this is an election year, Perry will do anything within his reach to cling on that chair.

The EPA finds the 16 year permitting program incompliant with the Clean Air Act. The program makes it difficult to monitor the pollution and reduce emission from Texas facilities because, rather than having to disclose pollution for each individual smokestack at a facility, they aggregate them all together. The Governor and the Attorney general have already sued the EPA protesting the latter’s “overstepping its authority.” The TCEQ says the program is just fine and gives permits to Texas at a cheaper cost.

But we and most other environmental groups, find flex permits severely lacking. All we (and the feds) are asking for is some basic transparency. If flex permits do work, simply tell us what your emissions are, and let’s have a debate about the efficacy of the program. Buit we can’t do that while industry and TCEQ hide the data from the public.

After the many twists and turns this battle has taken, the EPA has set in place a new rule to start a voluntary Audit Program under which refineries and other facilities in Texas can hire a third party auditor. If businesses fail to meet the standards after being audited, the EPA promises not to penalize them but to work with them to acquire a federal air permit.

TX facilities should find this program reasonable. According to the EPA’s website, “The Audit Program is available for 90 days after publication in the Federal Register. Participants who sign up in the first 45 days can take advantage of a reduced penalty incentive for potential violations.”

The TCEQ has protested the new rule, “he state of Texas vigorously defends its flexible permits program and expects to prevail in court. Flexible permits are legal and effective,” said Terry Clawson, the Spokesman for the TCEQ.

Well, if that’s so– show us the data. They won’t, because they know that it won’t stand up to scrutiny.

Finally, Texas facilities will follow the Clean Air Act, just like facilities in every other state.

Meanwhile, tax dollars Texans pay are being wasted on a state agency that refuses to do its job of protecting the state’s environment, and are being wasted by our governor and attorney general on meaningless lawsuits. The EPA is not out to get Texas and just like Al Armedariz said, “Our objective is to get good permits.”

That’s our goal, too. TCEQ is undergoing Sunset Review by the Texas Legislature. Let’s hope we get an agency that follows the law.

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By promoting cleaner energy, cleaner government, and cleaner air for all Texans, we hope to provide for a healthy place to live and prosper. We are Public Citizen Texas.

Not only does the pollution of dirty energy companies extend across other states but so does their influence. Not far from Texas, California is fighting two big Texas oil companies to keep its air cleaner. To give you some background, California passed historic legislation in 2006 that mandates the state to cut 25% of its greenhouse emission by 2020. A legislation such as California’s Global Warming Solutions Act of 2006 would cost oil companies extra bucks to get their facilities to comply with the requirements of the law.

Once again, the Republican Party is selling this legislation as an incentive for jobs. It suspends AB32 until unemployment in California dips back to 5.5% for 5 consecutive quarters. To simplify, Republicans are blurring the line between employment and public health and it doesn’t have to be that way. In fact, many jobs can be created by using green energy and these jobs will not pose any health risks to the employees or the residents of the area. The Republican party has to get a different energy plan than, ”work and get sick or no work at all.” It is 2010 and we can employ many more better resources in the United States than the dirty ones we have been using for the past century. I must add that even California’s Governor, a Republican thinks this proposition is ridiculous. Schwarzenegger said in July that, “the move would seriously undermine California’s efforts to attract new investment and create thousands of new jobs in green technology.” His Republican opponent for the governor seat, however, is vowing to suspend the law for at least one year, if she takes office.

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By promoting cleaner energy, cleaner government, and cleaner air for all Texans, we hope to provide for a healthy place to live and prosper. We are Public Citizen Texas.

Monday August 2nd the state of Texas sent a letter to the EPA (original can be downloaded here) informing them that we would no longer be complying with the Clean Air Act, specifically provisions relating to the regulation of greenhouse gases. This letter signed by Attorney General Greg Abbott and TCEQ Commissioner Bryan Shaw is full of bluster and short on reasoned legal arguments with any real merit.

What it really remind me of is one of my favorite paintings, Запорожцы пишут письмо турецкому султану or, Zaprozhe Cossacks Writing a Letter to the Turkish Sultan by Ilya Repin. (For comparison’s sake, I would highly recommend following that link to read the text of the Cossack’s letter– it has language saltier than anything else I’ve heard this side of South Park) I just can’t help think of the unabashed joy that must’ve coursed through the veins of the Atty General and TCEQ Commissioner as they drafted this, using phrases like (more…)

The EPA announced today that Texas’s much-discussed and derided flex permitting program does not follow the federal Clean Air Act (big surprise </sarcasm>). This was an action that began when the EPA under George W. Bush called into question the transparency and efficacy of the program which allows big polluters to skirt the federal Clean Air Act. From their press release:

EPA is disapproving the permit program after determining that it allows companies to avoid certain federal clean air requirements by lumping emissions from multiple units under a single “cap” rather than setting specific emission limits for individual pollution sources at their plants.

“Today’s action improves our ability to provide the citizens of Texas with the same healthy-air protections that are provided for citizens in all other states under the Clean Air Act.,” said Al Armendariz, Regional Administrator. “EPA will continue working closely with Texas, industry, environmental organizations, and community leaders to assure an effective and legal air permitting system.”

We’re chiming in on this, with a joint press release from the Alliance for Clean Texas (ACT), where you can go to read the full press release. Here’s the highlights: (more…)